Legalities of audio recording

Recording audio in conjunction with video can make a huge difference in the value of the video. Audio recording could be used as evidence in employee misconduct investigations, insurance liability claims or even criminal trials. However, there are state and federal laws that must be considered when recording audio. Not properly following these laws can result in criminal and/or civil charges and it is unlikely that the recorded audio will be admissible in court.

The first law that must be considered is the Electronic Communications Privacy Act. This statute allows you to record phone calls and other electronically transmitted audio sources as long as one of the parties being recorded gives consent. This is known as “One party consent”. This means that, if you are one of the two parties in a phone call, you can record the call because you are giving yourself consent to be recorded. If you are not a party in the conversation, then at least one of the parties must give consent.

Now, that all sounds simple enough. Well, that is only the federal law regarding recording audio. There is still state law to consider as well. Each state has its own laws governing the recording of conversations. Most states just echo the federal law and require one party consent to record a conversation. There are currently 37 states with one party consent laws. These states are: Alaska, Arkansas, Colorado, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, Wisconsin and Wyoming and the District of Columbia.

Although Nevada is considered to be a one party consent state, there have been various interpretations of their law, so to err on the side of caution, we should consider it to be an “all party consent” state. All party consent means that all parties involved in any of the audio that is recorded must give consent. Currently 12 states require all parties to give consent to be recorded. These states are: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania and Washington. In California, there is an exception – you can record a conversation with the consent of only one party if criminal activity (kidnapping, extortion, bribery or a violent felony) is involved.

In both one party and all party consent situations, audio can still be recorded. The governing law with regards to recording audio is Title 18, Part 1, Chapter 119 of the US Code. As with most laws, trying to read and understand it is a daunting task. But it all comes down to one definition in this code. Section 2510 Paragraph 2 states:

“oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication.

So, this essentially means that, if a person expects their conversation to be private, then it is illegal to record it. So, it is up to you to ensure that they don’t have any expectation of privacy. Most of this can be achieved with proper signage. If, when a customer comes into your business, they see conspicuous signs that say “AUDIO RECORDING IN PROGRESS” or something to that effect, then they surely cannot assume that their conversations will be private. By choosing to remain in your place of business, they are in effect giving legal consent to being recorded. This fulfills the intent of the law. Many companies include a clause in their employment handbook that states that audio recording is conducted. Employees sign a consent form as a condition of employment. In this case, no signage is required in the workplace except in areas where customers are being served or other persons that have not consented may be recorded.

The laws governing audio recording are not on the books to keep you from recording. Their only purpose is to ensure that everyone’s right to privacy is respected. So, as long as the spirit of the law is taken into consideration, and all parties involved are properly aware of the situation, there should be no legal barrier to recording audio with your surveillance system.

Note: this information is based on the opinions and interpretation of the author and is for general informational purposes. This is NOT legal advice. Do not rely on any of this information without verifying same with your attorney.

2 Responses to “Legalities of audio recording”

Thanks! It helps to know more about how and where the law requires consent. We’re setting up security cameras in our place of business; some have microphones. In the eventuality of a serious incident, having a video AND audio record could be immensely valuable, so we will put up clear notices and go ahead with audio recording in a few key locations. We’ll run the notices by our attorney.